AJustice without Quality is Arizona Attorneys for Criminal Justice

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					      “Justice without Quality is
            Justice Denied”

          Report of the Arizona Attorneys for
          Criminal Justice DUI Committee on
             Due Process v. Expediency

                  A Response to the DUI Case Processing
                     Committee’s Report for Expedited
                       Guilty Pleas and Jury Trials

March, 2006
W. Clifford Girard, Phoenix, Arizona    Joseph P. St. Louis, Tucson, Arizona
Committee Chairman                      President, Arizona Attorneys for Criminal Justice

Stephen Paul Barnard, Tucson, Arizona

Kathleen Carey, Phoenix, Arizona

David G. Derickson, Phoenix, Arizona

John Phebus, Phoenix, Arizona

Lisa Posada, Phoenix, Arizona

Curtis A. Rau, Phoenix, Arizona

          The misdemeanor trial is characterized by insufficient and frequently
          irresponsible preparation on the part of the defense, the prosecution,
            and the court. Everything is rush, rush. There is evidence of the
              prejudice which results to misdemeanor defendants from this
                                “assembly-line justice.” 1

         - Supreme Court of the United States

i.       Statement of Purpose

        Arizona Attorneys for Criminal Justice (“AACJ”) is a group of over 400 allied legal
professionals, dedicated to improving the quality of Justice throughout Arizona. The vast majority
of our attorneys practice in the area of DUI defense. Some members practice exclusively in this
field. Our organization is comprised of both public defenders and private attorneys. We are in
court defending DUI cases every day.

        Our primary objective is to ensure that our clients’ constitutional rights are scrupulously
enforced. Our job is to ensure that our clients are treated fairly, and that each person accused of a
crime has a meaningful day in court, before an even-handed, impartial and unbiased Trier of Fact.
Our clients’ Constitutional rights cannot be sacrificed in the name of expediency, or because the
courts have a large number of cases to process.

       We, too, have a significant stake in making sure that DUI cases are processed efficiently.
We are the ones who have to explain to our clients why they are required to appear for hearings
where nothing substantive is going to happen, and why the State is allowed to dismiss a case on the
morning of trial when an officer is unavailable, and is then allowed to refile and prosecute those
charges at a later date.

ii.      Background to Proposed DUI Processing Changes and AACJ Response 2

        In 2005 the Arizona Supreme Court created a DUI Case Processing Committee (“the
Committee”), composed entirely of judges, court personnel, a judicial education officer and a
former prosecutor. This committee was given the assignment of determining what changes could be
made to speed up the processing of DUI cases in Arizona. Strangely, given the issues being
considered, neither the defense bar generally, nor AACJ as its representative, was invited to the
table to give any input on what issues should be considered. Neither were prosecutors. Instead,

1 Baldasar v. Illinois, 446 U.S. 222, 229 n.2 (1980), overruled on other grounds, Nichols v. U.S., 511 U.S. 738 (1994)
(internal quotations and citations omitted).
2 The authors of this Report wish to thank Dr. Klein for his influence in the preparation of this report, through his law
review article, “Due Process Denied: Judicial Coercion in Plea Bargaining Process,” by Richard Klein, Prof of Law,
Touro Law School, J.D. Harvard Law School, 1972, published HOFSTRA LAW REV., Vol. 32:1349, 10/8/2004.

without the input of the lawyers who try these cases, the Committee held a series of meetings to
determine what changes would be made in DUI cases.

        Defense attorneys and prosecutors were invited to a meeting of the Committee in Tucson,
but only at the last minute. During this meeting the Committee did ask for their opinions about
what problems they perceived to exist in processing DUI cases. However, the Committee had
provided no framework for the discussion. The lawyers asked to be made aware of what the
Committee goals were, what changes the Committee would recommend be made, and to be
informed of how the Committee would implement those changes. The Committee claimed it had no
agenda--- that it was simply trying to determine whether any problems existed in the DUI arena.
With this complete lack of guidance, the attorneys did their best to give some type of meaningful
input to the Committee.

        A few months later the Committee produced a 39 page report, making specific
recommendations for changes to speed up the processing of DUI cases. No input was sought from
the defense community in formulating or evaluating these proposals, and not all of them will work.

        We are the lawyers who prepare these cases. We draft and litigate motions in DUI cases,
and we try these cases to juries. We have a unique insight into what is causing the delays in the
system, and what can be done to improve the efficiency of the courts. The issues involved here are
too important to be decided without considering our concerns. What follows are responses to the
Committee’s report and suggestions for effective changes that can be made to the court process,
This presentation is made by trial lawyers with decades of experience trying these cases, litigating
the technical, constitutional and procedural difficulties which are unique to DUI cases, and
experiencing earlier court efforts to streamline DUI cases.

iii.   Introduction to the AACJ Response

       The volume of misdemeanor cases, far greater in number than felony
       prosecutions, may create an obsession for speedy dispositions, regardless of the
       fairness of the result, and we must continually guard against assembly-line justice,
       in which expediency is placed ahead of fundamental fairness. Such an obsession
       with speed often results in inadequate attention given to the individual defendant,
       and the frequent result is futility and failure.

       Argersinger v. Hamlin, 407 U.S. 25, 34-35, 926 S. Ct. 2006, 32 L.Ed.2d 530 (1972)
       (internal quotations, citations and ellipsis omitted).


        In principle, AACJ agrees with the goals set forth by the Committee, including improving
the efficacy and education of law enforcement, prosecutors, MVD and the courts. We also support
the Committee’s efforts to identify and improve upon effective treatments and sanctions for DUI
defendants who have been adjudicated guilty; state sponsored treatment and substance abuse
recovery is a worthy goal. More specifically, we agree there needs to be improvement in the key
areas identified by the Committee:

        1)       Processing cases faster;
        2)       Identifying effective treatment models;
        3)       Improving the interaction of the different justice agencies.

         But, AACJ’s primary concern is that a person accused of DUI does not find himself
unconstitutionally prejudiced by the “expedited processing” of his case, not just the State's failure
or inability to timely produce relevant evidence prior the first or second pretrial conference. There
is also the concern that the accused may be forced to trial before there is adequate time to analyze,
develop and present a meaningful defense. This requires time to do witness interviews,
investigation, re-testing, find experts and having a time that those witnesses are available for trial.

        With all due respect to the Committee’s desire to arrive at “speedy justice,” AACJ cautions
against unfair or impossible time deadlines. Even highly trained and tested systems are subject to
errors when stressed. DUIs, by their nature, involve the use of specialized equipment which
analyzes blood alcohol content. In order to determine whether the State has a viable case, a defense
attorney must piece together the records on the equipment to determine whether it was working
properly. A defense attorney must also make sure that an officer meets his department’s standards
and requirements for conducting field sobriety tests, as well as operating the specialized equipment.
 Every practicing defense attorney has seen the State’s case fall apart after these types of documents
are gathered.

          Some members of the judiciary may not understand the importance of obtaining highly
technical proof of standards for maintaining and operating these machines, and establishing whether
there was compliance with state and federal regulations, manufacturer specifications and nationally
accepted standards in the case before the court. Efforts to obtain such information are inaccurately
described as ‘fishing expeditions’ by prosecutors and some courts. But to the defendant, whose
main accuser is a machine, such information is at least as important to him as similar information is
critical to determine whether a jet airliner is airworthy.

       The challenge is to improve efficiency of the DUI process without detrimentally affecting
the quality of justice administered. Justice delayed may be justice denied; but expediency without

3 Graver v. Secretary of Health, Ed. & Welfare, 405 F.Supp. 631, 636-37 (E.D.Pa.1975) (cited in State v. Uyesugi, 60
P.3d 843, 881 (Hawaii, 2002)).

regard to fairness will produce injustice. 4 We must continually guard against assembly-line justice,
in which the court’s concern for case management is placed ahead of fundamental fairness.

        The foundation of our legal system has been the United States and Arizona Constitutions,
both of which guarantee a defendant’s right to due process. While the courts have sometimes
considered due process elastic, expanding or retracting based upon its view of public policy, it has
never before overtly favored gradations of due process. Misdemeanor DUI cases have been singled
out for this special treatment not because they are more serious than felonies but because they are
thought and because there are so many. 5 The court system can save time and money by promoting
pleas. Accordingly, the Committee has recommended abbreviating the legal process in order to
encourage plea agreements and thereby alleviate the Court’s DUI trial case load. Expedited trial
dates would likely encourage earlier plea agreements, but it will no doubt increase the potential for
stress and error.

         The establishment of prompt efficacious procedures to achieve legitimate state
         ends is a proper state interest worthy of cognizance in constitutional adjudication.
          But the Constitution recognizes higher values than speed and efficiency. Indeed,
         one might fairly say of the Bill of Rights in general, and the Due Process Clause in
         particular, that they were designed to protect the fragile values of a vulnerable
         citizenry from the overbearing concern for efficiency and efficacy that may
         characterize praiseworthy government officials no less, and perhaps more, than
         mediocre ones.

         Stanley v. Illinois, 405 U.S. 645, 656 (1972).

        No data has been presented to show how long the State takes, per case, to make available
necessary discovery and data necessary for the defendant to make an intelligent choice between the
alternatives. No officer of the court should tolerate a miscarriage of justice due to an admission of
guilt based on insufficient facts.

4 See Introduction to Special Report on California Appellate Justice, 45 HASTINGS L. J. 419, 421 (1994).
5 “A greater danger arises from practices and precedents that insidiously gain a foothold and power in courts of justice,
by inadvertence and lack of due consideration. The great importance of trial by jury is sometimes lost sight of, even in
courts of justice, in the disposition of petty misdemeanors, cases of no great moment, and what are called ‘plain cases.’
In the economy of time, the hurry of business, lack of attention, hasty consideration, irregular and unwarranted methods
of trial are adopted, allowed, tolerated, and thus vicious practices spring up, creating sources of danger to constitutional
right. It is the province and the duty of the courts to keep strict watch over and protect fundamental rights, in all matters
that come before them. Those who administer the law should never forget that decided cases make precedents,
precedents oftentimes of little moment in themselves, but which, in their accumulated power may, in some emergency,
overturn principle and subvert the right of many people.” Priestly v. State, 19 Ariz. 371, 376 (1918).

         Moreover, no data has been presented regarding the number of cases set for trial that, once
set, settled in a plea agreement preceding trial. This determination, however, is necessarily
dependent upon the expeditious disclosure of those items necessary to make an intelligent decision.
 More often than not the disclosure is not provided within the first 30 days following an arrest. A
significant number of the delays in DUI case processing are a direct result of delays attributable to
law enforcement (including criminalists), the prosecution and the MVD. 6

        When calculating a reasonable average time for settlement, mandatory, some time delays are
accepted and must be recognized. Where a defendant requests appointment of counsel or time to
obtain the services of counsel at the first pretrial disposition conference (“PDC”), affirming this
constitutional right in a meaningful way will require resetting the hearing. It is at the PDC that a
defendant often obtains the initial discovery containing details of the allegations against him/her
and a list of the witnesses the state intends to call. An indigent defendant is generally not
represented by counsel at this stage and has no opportunity to assess the truth of the allegations
contained in this initial disclosure. Normally a 30 day continuance is needed to secure counsel and
discuss the available options, which puts the baseline starting point for effective representation at
60 days after the case is filed. Even that date assumes the results of any chemical tests, and the
records establishing the probable validity of those tests, have been disclosed.

I.       Basic Data Required by Defense Counsel

     •   911 tape
     •   COBRA data
     •   Color photos
     •   Communications of police from car to car
     •   Dispatch calls
     •   DR
     •   DRE supplement
     •   Fingerprints
     •   Fire incident number
     •   Interview tape
     •   Lab results
             o Blood
             o Breath
     •   Officer notes
     •   Other charges
     •   Priors

6 In fact, the November 2005 Report of the DUI Case Processing Committee only identifies one area of concern that
delays in processing have anything to do with defendants and their counsel – namely, the availability of the defendant’s
criminalist for trial, Chester Flaxmayer, a highly competent DUI defense expert, who is the only such expert in the state
of Arizona. This is a recognized problem which has vexed the defense community for nearly two years.

      •   SQAP reports
      •   Video tape
      •   Witness statements

       Without such information, defense counsel cannot ethically advise his client to make an
informed decision between the alternatives. Many cases will require pretrial questioning of
witnesses. Whether or not the machine was working properly or had been misused could result in
suppression of key evidence.

         An accused is entitled to counsel who has thoroughly investigated and analyzed the case
before the client makes a choice between plea or trial. We have a professional obligation to provide
the client with the knowledge, skill, preparation and advice necessary for the client to make a truly
‘informed decision’. Furthermore, our personal interest in helping the criminal justice system
achieve manageable calendars is always subservient to our duties to the client. If we fail to comply
with these fundamental directives, we are failing to serve our clients and we are subject to
professional discipline.

II.       Duties of Defense Counsel

        According to the ABA Standards for Criminal Justice, Standards 4-1.2(b) (3d ed. 1993), a
defense attorney is to administer justice as an officer of the court by advocating and rendering
effective and quality representation with courage and devotion. Counsel’s responsibility is to
oppose the government in adversary litigation. Ferri v. Ackerman, 444 U.S. 193, 204 (1979).
Effective assistance of counsel is required by the Sixth Amendment of the United States
Constitution, Article II, Section 24 of the Arizona Constitution, the ABA Model Code of
Professional Responsibility, Rules of Professional Conduct everywhere, and the ABA Standards for
Criminal Justice. In many respects our independence requires defense attorneys to be the contrarian
or the ombudsman. The report recommendations could have the unintended effect of making
defense attorneys a part of the plea bargain team instead. They would be the ones promoting plea
agreements to the charge, to their clients.

        The presumption of a defendant’s innocence is not a mere formality; it expresses the vital
principle of our jurisprudence and procedure. State v. Hardy, 128 S.E. 152, 155 (N.C. 1952).
Counsel for an accused is supposed to conduct a full investigation and study of the case, including
the controlling law and evidence that is likely to be introduced at trial before providing any
recommendation concerning a plea. Walker v. Caldwell, 476 F. 2d 218 (5th Cir. 1973); ABA
Standards, 4-6.1(d). The Court should not accept a plea where a defendant has not had effective
assistance of counsel. Chandler v. Fretag, 348 U.S. 3 (1954). An attorney’s duty is to avoid
situations where he or she is induced by the court into taking a plea where he has not had an
opportunity to develop the case or present a defense. Argersinger, 407 U.S. at 34.

       If defense attorneys feel compelled to “triage” in order to please judges, courts, and the
system, there are serious ethical problems. Furthermore, we have an obligation to resist any system

that pressures the defense bar to cull their clients and to plead so early in the case that the defense is
either unknowledgeable or unprepared to explain the risks and the rewards of proceeding to a plea
or trial.

        When an expert has a legitimate scheduling conflict and is thus unavailable for trial, we
must insist that the court observe its duties to provide fundamental justice, and to reset the trial to
accommodate the defense. 7 Defense attorneys are required to inform their clients of this court
imposed policy so that the clients are fully aware of the consequences of not pleading, and can fully
appreciate the pressure under which counsel must prepare for their case on an expedited basis.
Frequently, the accused has the most difficulty understanding why a court would not continue a
case where his expert is not available through no fault of his own. An attorney who does not follow
these mandates in order to comply with a judicial request may subject himself to possible
disciplinary proceedings. See Holt v. Whelan, 199 N.W. 2d 193, 196 (Mich. 1972).

       Realistically, expediting trial dates to satisfy an unrealistic unfairly or unconstitutionally
impinges on the constitutional rights of the defendant by setting unrealistic trial dates, depriving
defendant of his right to an expert witness, counsel and effective assistance of counsel. We do not
believe that our judiciary intends these consequences. 8

III.     Duties of the Judiciary

         The first Canon of the Model Code of Judicial Conduct informs that an independent and
honorable judiciary is indispensable to justice in our society. As stated in Francolino v. Khulman,
224 F. Supp. 215, 630 (S.D.N.Y. 2002), the mere appearance of partiality even if unfounded,
greatly undermines the credibility of the criminal justice system. Justice Scalia also described the
“appearance of justice is as important as its reality.” (J.E.B. v. Alabama, 511 U.S. 1227, 161 n. 3
(1994) (Justice Scalia dissenting). See also Turney v. Ohio, 273 U.S. 510, 523 (1927). The
Supreme Court has said that the “Bill of Rights in general, and the Due Process Clause in particular
. . . were designed to protect the fragile values of a vulnerable citizenry from the overbearing
concerns for efficiency and efficacy . . ..” Stanley, 405 U.S. at 656. See also Glasser v. United
States, 315 U.S. 60, 71 (1942). Chief Justice and noted conservative, the late Warren Burger, asked
in his concurring opinion in Mayer v. City of Chicago, 404 U.S. 189, 201 (1971), “[w]hatever
happened to the idea that an affluent society ought not be miserly in support of justice, for economy
is not an objective of the system . . ..” He also wrote in 56 ABA J. 325 at 325 (1970) that
defendants must be provided with full due process and “full measure of days in court” regardless of

7 Judges are contemplating discharging private attorneys from cases who are unavailable or have conflicts on future trial
dates. One Superior Court Central Division out of Pima County has already ordered its staff to research its ability to
discharge private attorneys whose scheduling may cause conflicts and thereby delay case load management. One
attorney has been so threatened. It is believed that more threats will follow.
8 However, in certain instances, “many trial judges seem to have become [as] preoccupied with ‘moving’ cases as traffic
policemen are with moving vehicles. Moreover, the techniques that they employ are not entirely dissimilar.” Harris,
Annals of Law--In Criminal Court, NEW YORKER, Apr. 14, 1983, at 45.

        The United States Supreme Court in Glasser said that upon the trial judges rests the duty of
seeing that the trial is conducted with solicitude for the essential rights of the accused. The judge is
to conduct himself so that he manifests professional respect, courtesy, and fairness toward the
defendant and his attorney. ABA Standards, 6-1.1 (c); Canon 3, Code of Judicial Conduct, Rule 81,
Rules of the Arizona Supreme Court. In Sheppard v. Maxell, 384 U.S. 333 (1966) the Supreme
Court mandated that the trial courts must take strong measures to ensure that the balance is never
weighed against the accused. In fact, the trial courts have an affirmative duty to intervene to protect
the rights of the accused. Holloway v. Arkansas, 435 U.S. 475 (1978).

         The ABA Criminal Justice Standards link the requirement of judicial impartiality with the
public confidence in the integrity of the judiciary. ABA Standard, 6-1.6(a) and (b). Standard 6-3.4
requires that the judge suppress personal predilections and not permit himself to become embroiled
in the conflict. The comments to the Rules state that a judge is not to demonstrate even a hint of
partiality. ABA Standard 6-3.4 cmt. When a judge abandons his position as a neutral arbiter and
takes on the role of an advocate, the system cannot function. See Bethany v. State, 814 S.W. 2d
455, 462 (Tex. Crim App. 1991); State v. Delarosa, 547 A. 2d 47, 51 (Conn. App. 1988). By
advocating a program that has the intent and the effect of pleading more than 80% of the DUI cases
in the shortest possible time, without protecting the rights of the defendant, the Court could no
longer be viewed as entirely impartial or fair to the defense.

        If there is to be a guilty plea, it must be the considered choice of the accused. Elksnis v.
Gilligan, 256 F. Supp. 244 (S.D.N.Y. 1966). A plea induced by threats is deprived of requisite
voluntariness. Brady v. United States, 397 U.S. 742, 746 (1970); United States v. Jackson, 390 U.S.
570 (1968). The United States Supreme Court says that even subtle threats void a subsequent plea.
 Boykin v. Alabama, 395 U.S. 238, 242-43 (1969). The issue is not whether judge’s comments were
deliberately designed to induce a guilty plea; it is whether the statements to the defendant had that
impact. Elksnis, supra, at 253. Prosecutors must take the lead in assuring that investigations of
criminal activities are conducted lawfully and in full and ungrudging accordance with the
safeguards of the Bill of Rights. ABA Standard, 3-3.1 cmt. In fact, the prosecutors also have a duty
to assure that the Courts safeguard the rights of the accused.

        The prosecutor has a duty to see that justice for the defendant is being served. The Court
has a duty to oversee and assure that right. United States v. Agurs, 427 U.S. 97, 110-11 (1976),
ABA Standards, 3-2.8(d). One role of the judge is to protect the defendant from prosecutorial
misconduct. United States v. Rogers, 471 F. Supp. 847, 852 (D.C.N.Y. 1979), ABA Standard 6-
1.1(c). It has been held that a plea induced by the influence of a judge cannot be said to have been
voluntarily entered. State v. Cross, 240 S.E. 2 514 (S.C. 1977); Commonwealth v. Evans, 252 A. 2d
689 (Pa. 1969); State v. Wolfe, 175 N.W. 2d 216, 221 (Wis. 1970). A judge must be a neutral,
impartial and objective adjudicator as to the voluntariness of the plea to appropriately fulfill his
judicial duty. Von Moltke v. Gillies, 332 U.S. 708, 724 (1948). The decision on whether to accept a
plea offer or to plead to the Court has to be the decision of the defendant acting upon advice of
counsel. Attorneys appearing before the courts naturally and ethically want to follow the directives

of the judge in order to expedite pleas, move cases, and---yes--- please judges. 9 The judiciary must
guard itself against exerting its influence too forcefully when essential liberty interests are at risk, as
they are in every DUI calendar.

IV.      Rights of the Defendant

       The Arizona legislature has mandated jury trials for a DUI charge. A.R.S. § 28-1381 (F) and
§ 28-1382(C) both state that “[a]t the arraignment, the court shall inform the defendant that the
defendant may request a trial by jury and that the request, if made, shall be granted.”

         The Arizona State Legislature has further mandated as follows:

         A.R.S. § 13-114. Speedy trial; counsel; witnesses and confrontation.

                  In a criminal action defendant is entitled:

                  1. To have a speedy public trial by an impartial jury of the county in
                     which the offense is alleged to have been committed.
                  2. To have counsel.
                  3. To produce witnesses on his behalf; and to be confronted with the
                     witnesses against him in the presence of the court, except that the
                     testimony or deposition of a witness may be received in evidence
                     at the trial as by law prescribed.

       Not only has the legislature mandated a DUI jury trial right, the right existed at common law
and while Arizona was a territory, a point well litigated in the Arizona cases following last year’s
Derendal decision. 10 And, the Defense Bar further steadfastly maintains that all criminal
defendants have an Arizona constitutional right to a jury trial. 11

9 “The rallying cry for those who raise the specter of backlogs as the justification for the expedient disposition of cases
is ‘justice delayed is justice denied.’ As one judge has noted, speedy disposition is not to be equated with justice: To
suggest that justice delayed is justice denied is not the answer. Justice delayed is not always justice denied, and speedy
justice is not always justice obtained. Increased pressures on the judiciary resulting from increased litigation
because of increased use of the courts by our society is an increased burden which must be met by the judiciary
alone, without sacrificing the quality of the justice dispensed. The resulting pressures should and must be
assumed by the judiciary without complaint. If justice delayed is justice denied, then justice without quality is also
justice denied, a result for which the judiciary alone will be held accountable without reference to collateral
pressures from whatever source.” Graver, 405 F.Supp. at 636-37 (cited in Uyesugi, 60 P.3d at 881) (emphasis added).
10 Derendal v. Griffith, 209 Ariz. 416 (2005).
11 Proposition 104 was overwhelmingly adopted by the voters on November 7, 1972. As amended by referendum,
Article 2, Section 23 of the Arizona Constitution currently provides: “The right of trial by jury shall remain
inviolate. Juries in criminal cases in which a sentence of death or imprisonment for 30 years or more is authorized by
law, shall consist of twelve persons. In all criminal cases, the unanimous consent of the jurors shall be necessary to
render a verdict. In all other cases, the number of jurors, not less than 6, and the number required to render a verdict,
shall be specified by law.”

        Under § 13-114, a defendant is entitled to THREE rights under statute – speedy trial,
counsel and the presence of witnesses. However, the Report of the DUI Processing Committee only
discussed the first right, and did not investigate, account for or report the importance of the other
two factors or how ‘speedy trial’ adversely affects them. Any procedural laws or policies which
impinge on a defendant’s substantive rights (e.g. substantive due process, right to counsel, right to
effective assistance of counsel, right to have witnesses called on his behalf) would serve to
circumvent or excoriate the rights conferred on DUI defendants by the Arizona State Legislature.
Failure to defer to these well settled matters of law would constitute a violation of the Separation of
Powers doctrine and surely invites a confrontation between the judiciary and the legislature.

        A heavy volume of cases may create an obsession for speedy dispositions, regardless of the
fairness of the result. Argersinger, 407 U.S. at 134. This is of particular concern for indigents and
appointed counsel. Gideon v. Wainwright, 372 U.S. 335, 344 (1963). The constitutional right of an
individual charged with a crime to force the government to prove its case without the aid of the
defendant, has existed in this country since the earliest days of the Republic. See Corbitt v. New
Jersey, 439 U.S. 212, 233 (1978) (Justice Stephens dissenting), citing Hardy, 128 S.E. at 229.

        In Corbitt, the Court ruled that it was constitutional for a court to grant leniency because of
a plea. However, it is also well established that the Court cannot penalize a defendant for
exercising a constitutional right. The defendant has every Constitutional right to require the State to
meet its burden of proof. Hardy, 128 S.E. at 155. Jury trials have been viewed as the normal and
preferred method of resolving criminal cases. See Singer v. United States, 380 U.S. 24, 35 (1965);
Patton v. United States, 261 U.S. 276, 312 (1930). There is no public policy requirement for a
defendant to waive his Constitutional guarantees and plead guilty at the earliest opportunity in order
to meet unreasonable, artificial deadlines to appease systemic inefficiencies. If the judiciary
requires counsel and defendant to do so, it could interfere with the attorney-client relationship and
the defendant’s basic entitlement to ‘justice’.

       In fact, the courts may not constitutionally punish a defendant, if convicted, at time of
sentencing for exercising his right to go to trial. State v. Boone, 239 S.E. 2d 459, 465 (N.C. 1977).
To quote the United States Supreme Court in Borderkircher v. Hayes, 381 U.S. 357 (1978), it is
unconstitutional for a judge to explicitly punish a defendant for exercising his rights:

       To punish a person because he has done what the law plainly allows him to do is a
       due process violation of the most basic sort, and for an agent of the State to pursue a
       course of action whose object is to penalize a person’s reliance on his legal rights is
       “patently unconstitutional.”

       Id at 363. See also United States v. Jackson, 390 U.S. 570, 581 (1968).

       The Eighth Circuit in Hess v. United States, 496 F. 2d 936 (8th Cir. 1974) expressed it well:
“Whether a defendant exercises his constitutional right to trial by jury to determine his guilt or
innocence must have no bearing on the sentence imposed.” Id at 938.

V.      The Defense Expert: A Defendant’s Right to Produce Witnesses on His Behalf

        A.       Generally

        In many criminal cases, in this instance DUI cases, securing the services of experts to
examine evidence, to advise counsel, and to testify at trial is critical. 12 As the commentary to the
ABA Standards notes: “The quality of representation at trial . . . may be excellent and yet unhelpful
to the defendant if the defense requires the assistance of a[n] . . . expert and, no such services are
available.” 13 A defendant in a DUI case cannot be competently represented if expert services are
denied – this proposition applies equally to the occasion when a defendant cannot afford an expert,
as well as the times when the bull-rush of the justice system hurries him towards a trial without
proper expert assistance.

         As early as 1929, Justice Cardozo commented: “[U]pon the trial of certain issues . . . experts
are often necessary both for the prosecution and for defense . . .. [A] defendant may be at an unfair
disadvantage, if he is unable because of poverty to parry by his own witnesses the thrusts of those
against him.” 14 Similarly, Judge Jerome Frank observed in a 1956 opinion: “The best lawyer in the
world cannot competently defend an accused person if the lawyer cannot obtain existing evidence
crucial to the defense, e.g., if the defendant cannot pay the fee . . . of an expert . . ..” He went on to
observe: “In such circumstances, if the government does not supply the funds, justice is denied the
poor . . ..” 15

        The ABA Standards require adequate access to experts for both the defense 16 and
prosecution. 17 In Ake v. Oklahoma, 470 U.S. 68 (1985), the Supreme Court recognized a due
process right to a defense expert: “[W]hen a State brings its judicial power to bear on an indigent in
a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to
present his defense.” Id. at 76. This fair opportunity mandates that an accused be provided with the
“basic tools of an adequate defense.”

12 See Paul C. Giannelli, Ake v. Oklahoma: The rights to Expert Assistance in a Post-Daubert, Post-DNA World, 89
CORNELL L. REV. 1305 (2004).
14 Reilly v. Berry, 166 N.E. 165, 167 (N.Y. 1929).
15 United States v. Johnson, 238 F.2d 565, 572 (2d Cir. 1956) (dissent), vacated, 352 U.S. 565 (1957).

       B.      The Arizona DUI Expert “Problem” – Limited Expert Resources to Present
               Critical Scientific Evidence on Accelerated Basis

        “A defendant has a due process and Sixth Amendment right to obtain the testimony of
witnesses and compel their attendance.” Washington v. Texas, 388 U.S. 14, 18-19 (1967) (cited in
State v. Nieto, 186 Ariz. 449, 462 (Ariz.App. Div. 1, 1996)). The defendant’s right to compulsory
process includes the right to “formulate his defense uninhibited by government conduct that, in
effect, prevents him from interviewing witnesses who may be involved and from determining
whether he will subpoena and call them in his defense.” State v. Ferguson, 149 Ariz. 200, 204
(1986) (quoting United States v. Tsutagawa, 500 F.2d 420, 423 (9th Cir.1974)). In fact, a defendant
is only required to show that a witness’ testimony would be “relevant and material to the defense.”
Washington, 388 U.S. at 23.

        Precluding defense expert testimony is within the power of the court, but only in extreme
situations. State v. Delgado, 174 Ariz. 252 (Ariz.App. Div. 1, 1993) discusses the court’s right to
preclude defense testimony through use of sanctions. The court called it a balancing test, saying
“[a]lthough this sanction is available to a trial judge, preclusion is rarely an appropriate sanction for
a discovery violation.” Delgado, 174 Ariz. at 257 (citing State v. Wargo, 145 Ariz. 589 (App
1985)). “A witness should be precluded only as a last resort.” State v. Tucker, 257 Ariz. 433, 440

        The Arizona courts have repeatedly emphasized that the trial court “should seek to apply
sanctions that affect the evidence at trial and the merits of the case as little as possible.” State v.
Smith, 123 Ariz. 243, 252 (1979); see also State v. Gutierrez, 121 Ariz. 176, 181 (Ariz.App. Div 1,
1978) (the witness sanction should only be used “in those cases where other less stringent sanctions
are not applicable to affect the ends of justice”).

        The State already has expert advantage over the defendant in a DUI breath test case because
of the “statutory method” of proving breath alcohol levels without calling an expert witness. Under
that provision of law, the State need not call an expert to qualify the machine nor its reading, some
courts having held that the State need only present the machine operator with ‘before’ and ‘after’
calibration tests and the test reading.

        The burden then shifts to the defense to rebut the machine’s reading. This requires the
defense to call an expert witness---a criminalist to testify about errors, malfunctions, and limitations
on machine accuracy to show that the reading may not be the defendant’s actual alcohol
concentration. One of the recommendations made by the Report of the DUI Case Processing
Committee would impermissibly sanction a defendant by precluding the expert from testifying if
the expert is unavailable for a particular trial date. While the State only rarely has an expert witness
scheduling conflict, the defense has many such conflicts because there are so few experts available.
 Some judges who see expedition as the goal of the Committee’s recommendations will preclude
the defendant from presenting a meaningful defense against the state’s chemical evidence by
precluding the expert’s “untimely” testimony. This result contravenes accepted notions of ‘justice’
as reflected in case law, statute and other court rules.

        Some courts have already insisted that Chester Flaxmayer---currently the only available in-
state expert in the field---be available on a certain date, at a certain time, and have expressed that
they will not accommodate the defense by one hour or by one day, in order to move these cases
from their docket. These courts hope that such pressure will ‘encourage’ plea agreements. If
counsel sought to fly in an out-of-state expert as an alternative to Mr. Flaxmayer, that would create
even more scheduling expenses and problems, particularly for public defenders and contract
attorneys. The same type of problems would still arise.

      Some courts have been encouraged to “speed up” DUI case processing, regardless of Mr.
Flaxmayer’s court conflicts and commitments elsewhere. While no such recommendation has been
made by this Committee, the Defense Bar is concerned that some judges believe that precluding Mr.
Flaxmayer’s testimony is an acceptable method to clear their calendars of trials.

        Restrictions on any expert’s testimony infringes on a defendant’s due process rights to
present the theory of the case, and in many respects, even a defense, because a breath alcohol test
reading can be dispositive of guilt or innocence. Montano v. Superior Court, 149 Ariz. 385, 389
(1986). The right of a defendant to call witnesses to present a defense is fundamental. A defendant
must have a “meaningful opportunity” to present a complete defense. To safeguard that right, the
Court has developed “what might loosely be called the area of constitutionally guaranteed access to
evidence.” California v. Trombetta, 467 U.S. 479, 485 (1984) (citing United States v. Valenzuela-
Bernal, 458 U.S. 858, 867 (1982)). Restrictions cannot be arbitrary or so disproportionate as to
infringe on the defendant’s constitutional rights. This is particularly true when the testimony is
used to establish or explain his theory of the case or corroborate other testimony. State v. Gilfillan,
196 Ariz. 396 (App. 2000).

VI.    Recommendations

In support of the Court’s desire to improve the efficiency and speed of DUI case processing, the
Defense Bar makes the following recommendations:

       (1)     Increase the number of judges and courtrooms to keep pace with the increasing case
       (2)     Increase funding for the overwhelmed public defense agencies;
       (3)     Improve turnaround time for the State’s production of necessary evidence;
       (4)     Improve flexibility in scheduling to accommodate the defendant’s criminalist;
       (5)     Eliminate or modify statutory prohibitions on plea bargains;
       (6)     Require that cases dismissed by the state in order to avoid the consequences of Rule
               8, including continuance denials, be dismissed with prejudice;
       (7)     Enforce current Rule 8 time limits.

VII.   Conclusion

       In 1972, Supreme Court Justice Douglas warned that:

       Wherever the visitor looks at the system, he finds great numbers of defendants being
       processed by harassed and overworked officials. Police have more cases than they
       can investigate. Prosecutors walk into courtrooms to try simple cases as they take
       their initial looks at the files. Defense lawyers appear having had no more than time
       for hasty conversations with their clients. Judges face long calendars with the
       certain knowledge that their calendars tomorrow and the next day will be, if anything
       longer, and so there is no choice but to dispose of the cases. Suddenly it becomes
       clear that for most defendants in the criminal process, there is scant regard for them
       as individuals. They are numbers on dockets, faceless ones to be processed and sent
       on their way. The gap between the theory and the reality is enormous. Very little
       such observation of the administration of criminal justice in operation is required to
       reach the conclusion that it suffers from basic ills. That picture is seen in almost
       every report. The misdemeanor trial is characterized by insufficient and frequently
       irresponsible preparation on the part of the defense, the prosecution, and the court.
       Everything is rush, rush. Hellerstein, The Importance of the Misdemeanor Case on
       Trial and Appeal, 28 The Legal Aid Brief Case 151, 152 (1970).

       Argersinger, 407 U.S. at 35-36 (internal quotations omitted) (Justice DOUGLAS).

        The Defense Bar applauds the Court’s progress towards improving the efficiency of law
enforcement, the courts, MVD and related agencies. We also support any improvement of state
support for treatment and/or reintegration of adjudicated defendants. As long as ‘justice’ is not
sacrificed on the altar of ‘speed for speed’s sake’, the justice system can count on our steadfast